Recapture and Termination Rights

In the world of copyright, few things are more attractive to artists than the recapture and termination period.

These two concepts mean an artist can repossess the rights to sound recordings or songs they authored years ago, which up until recently were controlled by another party.

We’ll focus on sound recordings for this article since these are the most likely works to fall into this specific and interesting category.

Sound recordings are mostly owned by record labels, created with the express line of copy “work-for-hire” in most every record label contract.

What’s interesting is that an important debate regarding the true implications of that line is on the horizon.  And for a certain amount of sound recordings created before 1978, that debate could mean big changes in ownership.

We will start to find out soon how this issue will be dealt with, as this recapture period is just starting to rear its head.

To understand why an artist might be able to recapture his original masters (and hugely profit from master ownership), we need to understand works for hire.

Check out the qualifying rules:

“(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101)”

Do you notice a particular exclusion from part 2?  That’s right, no explicit mention of sound recordings (yes, you could argue it loosely fits into “audiovisual work” or “compilation”).

Furthermore, the termination rights for pre-1978 recordings essentially state that it can be expressed only by the author of the work.

So here we come to the rub – because a sound recording also doesn’t perfectly fit into a definition of employment:

Employment would indicate health benefits, a steady salary, and all granted over a certain period of time.

At this point, resolution comes only in the shape of a ruling by the courts which sets legal precedent or some amendment to the copyright act.

Until then, sound recordings that come to termination and recapture rights could very well end up in the hands of the artists that recorded them, not the record labels that paid for them.

The bottom line? If you’re an artist and recorded something that falls within the recapture/termination period, you should serve notices of termination … just in case.

Andy Lykens is a music branding and marketing specialist for Imagem Music, the world’s largest independent music publisher. Follow him here.